Commentary on Judgment No. 22914 of 19/08/2024: The Procedural Privilege of Real Estate Credit

Judgment No. 22914 of August 19, 2024, issued by the Court of Cassation, offers important clarification on business crisis and the rights of real estate creditors. In particular, the judge reiterated the possibility for real estate creditors to avail themselves of the procedural privilege under Article 41 of Legislative Decree No. 385 of 1993, even in the presence of insolvency proceedings such as judicial liquidation and controlled liquidation. This principle is particularly relevant in a complex economic context, where the protection of creditors' rights becomes crucial.

Procedural Privilege: A Fundamental Right

Procedural privilege allows a real estate creditor to exercise specific rights in the event of forced execution. The judgment in question clarifies that this privilege remains in force despite the reforms introduced by Law No. 14 of 2019, which amended the discipline of business crisis. In fact, the Court ruled that the creditor can continue to assert their rights in both judicial liquidation and controlled liquidation. This approach aims to ensure uniform protection for real estate creditors, recognizing the commonality of discipline between the various proceedings.

Legal and Regulatory Implications

In general. In matters of business crisis, a real estate creditor may avail themselves of the procedural privilege under Article 41 of Legislative Decree No. 385 of 1993, an institution still in force as it was not affected by the reform, both when the debtor subject to enforcement is undergoing the judicial liquidation procedure under Articles 121 et seq. of Legislative Decree No. 14 of 2019, and when they are undergoing the insolvency procedure of controlled liquidation under subsequent Articles 268 et seq., so as to treat controlled liquidation and judicial liquidation similarly, now bound by a common discipline, in relation to enforcement proceedings initiated by real estate creditors.

This maxim highlights how, despite reforms, the Italian legal system recognizes the need to protect the rights of real estate creditors. Regulatory references such as Articles 51, 52, and 93 of the Bankruptcy Law and Articles 121 and 268 of Legislative Decree No. 14 of 2019 corroborate this position, confirming that insolvency proceedings must treat all creditors fairly, without discrimination.

Conclusions

In conclusion, judgment No. 22914 of 2024 represents a significant step in defining the rights of real estate creditors within business crisis proceedings. The continued validity of the procedural privilege, as established by the Court, offers greater certainty to creditors and contributes to a more stable economic system. Legal practitioners and industry professionals should pay particular attention to these rulings, as they represent a fundamental reference for managing corporate crises.